Citation Nr: 1112637
Decision Date: 03/30/11 Archive Date: 04/07/11
DOCKET NO. 06-16 502 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan
THE ISSUES
1. Entitlement to a higher initial rating for HIV, currently evaluated as 10 percent disabling prior to August 24, 2009 and 30 percent disabling from August 24, 2009 onward.
2. Entitlement to a higher initial rating for facial acne, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
O. Lee, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy Reserve from July 1997 to January 2001 and February 2004 to May 2005.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2005 and November 2007 rating decisions of the RO in Detroit, Michigan. The October 2005 rating decision in pertinent part granted service connection for HIV, assigning a 10 percent disability rating, and granted service connection for facial acne, assigning a noncompensable disability rating. The November 2007 rating decision increased the initial evaluation of facial acne from noncompensable to 10 percent.
The Board remanded this case in May 2009. On remand, a rating decision dated in October 2009 increased the initial rating for HIV to 30 percent, effective August 24, 2009. The Board notes, with respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. In this case, the Veteran's representative has expressly indicated his desire to continue appealing for the assignment of a higher rating.
The Veteran testified at a November 2006 hearing before a Decision Review Officer (DRO). A transcript of that proceeding has been associated with the claims file.
FINDINGS OF FACT
1. Prior to August 24, 2009, the Veteran's HIV was manifested by T-cell count of 456 at worst, treatment with anti-retroviral therapy, diarrhea at worst once a month, and no recurrent constitutional symptoms or pathological weight loss.
2. From August 24, 2009 onward, the Veteran's HIV has been manifested by recurrent night sweats, recurrent extreme fatigue, severe diarrhea, treatment with anti-retroviral therapy, and no refractory constitutional symptoms or progressive weight loss.
3. The Veteran's facial acne is manifested by active acne lesions affecting less than 40 percent of the face and neck, and healed pitted lesions that do not result in any visible or palpable tissue loss and gross facial distortion or asymmetry, any characteristics of facial disfigurement, frequent loss of covering of skin over the scar; pain on examination; and/or limitation of the function of any part affected.
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating in excess of 10 percent for HIV prior to August 24, 2009 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.88b, Diagnostic Code 6351 (2010).
2. The criteria for an initial disability rating in excess of 30 percent for HIV from August 24, 2009 onward are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.88b, Diagnostic Code 6351 (2010).
3. The criteria for an initial disability rating in excess of 10 percent for facial acne are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804 (2008); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.118, Diagnostic Codes 7805, 7828 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In the interest of clarity, the Board will first discuss certain preliminary matters. Then the Board will render a decision.
The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
As noted above, the Board remanded this case in May 2009. The Board instructed the AOJ to obtain outstanding medical treatment records relating to the Veteran's HIV and facial acne, schedule the Veteran for a VA examination to evaluate his HIV and facial acne, and readjudicate the claims. As further discussed below, the AOJ sent a letter to the Veteran in June 2009 asking him to identify outstanding medical treatment records, additional VA and private treatment records have been associated with the claims file, and he was provided VA, examination in August 2009. Thereafter, the Veteran's claims were readjudicated in October 2009 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).
I. The Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless.
Prior to the initial adjudication of the Veteran's claims, letters dated in May 2005 and August 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the Veteran of the information necessary to substantiate the claims, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claims, and told that it was ultimately his responsibility to support the claims with appropriate evidence.
The Court has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In the present case, the Veteran's claims were granted, disability ratings and effective dates assigned, in an October 2005 decision of the RO. The May 2005 and August VCAA letters have served its purpose and VA's duty to notify under § 5103(a) is discharged. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). In any event, it is noted that the Veteran was given proper notice in a March 2006 letter and was given ample opportunity to respond. Subsequently, the claims were readjudicated in November 2007 and October 2009 SSOCs. Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).
The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the claims file. Private medical records identified by the Veteran have also been associated with the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.
The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007).
The RO provided the Veteran appropriate VA examinations in September 2005, October 2007 and August 2009. The Board finds these opinions to be comprehensive and sufficient in addressing the severity of the Veteran's HIV and facial acne. In particular, it is noted that the most recent August 2009 opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The examination reports on file are thorough and supported by the other medical evidence of record. The examinations in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).
II. Initial Ratings
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.
The Board reviews the veteran's entire history when making a disability determination. See 38 C.F.R. § 4.1. When the veteran has timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
a. HIV
The Veteran was granted service connection for HIV in the October rating decision and assigned an initial rating of 10 percent, effective May 17, 2005. Subsequently, an October 2009 rating decision increased the initial rating for HIV to 30 percent, effective August 24, 2009.
The Veteran's service-connected HIV is rated under 38 C.F.R. § 4.88b, Diagnostic Code 6351, specifically for HIV-related illness. The Board finds this code to be the most appropriate diagnostic code under which to evaluate the disability at issue. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).
Under Diagnostic Code 6351, a 10 percent disability rating is warranted following development of definite medical symptoms, T4 cell of 200 or more and less than 500, and on approved medication(s), or; with evidence of depression or memory loss with employment limitations. A 30 percent rating is appropriate where the HIV-related illness results in recurrent constitutional symptoms, intermittent diarrhea, and requires approved medication(s); or as the minimum rating with T-cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. A 60 percent rating is available if there are refractory constitutional symptoms, diarrhea, and pathological weight loss; or as the minimum rating following development of AIDS-related opportunistic infection or neoplasm. A 100 percent rating is warranted for AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems; or an HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions. Note (2) states that psychiatric or central nervous system manifestations, opportunistic infections, and neoplasms may be rated separately under appropriate codes if higher overall evaluation results, but not in combinations with percentages otherwise assignable above. 38 C.F.R. § 4.88b.
For the period prior to August 24, 2009, the relevant medical evidence of record includes private treatment records from Physician Healthcare Network, VA treatment records dated from June 2005 to May 2009, and VA examination reports dated in September 2005 and October 2007. The evidence reflects that the Veteran was initially diagnosed with HIV in April 2005, while he was still in service.
Private medical records from Physician Healthcare Network reflect treatment for HIV from August 2005 to September 2006. On initial evaluation in August 2005, the Veteran reported feeling relatively well. He denied fever, chills, rigors, any significant weight loss, abdominal trouble, diarrhea, change in bowel habits, or other significant changes. His weight was 168 pounds. The impression was asymptomatic HIV infection with a CD4 count of 640 and a relatively low viral load of 35,547. Follow up evaluation that same month revealed a CD4 count of 456 and viral load at 11,900. His weight was 171.2 pounds. Therapy with Combivir and Sustiva was initiated. In October 2005, the Veteran continued to report that he felt relatively well. He had no significant trouble with the initiation of Sustiva and Combivir. Fever, chills, rigors, disturbing dreams and other troubles were denied. CD4 count was 682 and viral load was down to 76, which was described as completely controlled. In December 2005, the Veteran continued to deny any significant difficulties, such as fever, chills or rigors, and was quite surprised with how well he was feeling. Weight was stable at 168.6 pounds. It was noted that the most recent blood test was done at VA, which revealed a CD4 count of 623. The marked improvement of the CD4 was likely indicative of either complete control or near control of his viral load. Since the Veteran had a stable HIV infection, the plan was to continue treatment with Combivir and Sustiva. In March 2006, the Veteran continued to relate no interim troubles. Weight had been stable, now at 162 pounds, and there were no fevers, chills or rigors. CD4 was at 782, and viral load was undetectable at less than 75. The Veteran reported having no troubles. In June 2006, the Veteran continued to have no interim troubles. His weight was 161 pounds. CD4 was excellent at 741 with an undetectable viral load. The rest of his blood work looked excellent. In September 2006, the Veteran again reported no significant troubles since last being seen. He related that he felt well, that his health had been giving him no troubles at all, that his energy level was good and that he was able to work through the summer without any troubles. On physical examination, it was noted that the Veteran had lost a few pounds since last being seen, but that he looked well and that he had been quite busy over the summer. He denied any troubles with nausea, emesis or dysphagia. CD4 count was up to 1,015, showing excellent response to the current antiretroviral therapy of Combivir and Sustiva. Viral load was undetectable, as it had been generally since October 2005. In January 2007, the Veteran continued to do well. His weight was 156.4 pounds.
VA treatment records show that the Veteran's weight was 174.2 pounds in June 2005, 174 pounds in September 2005, 163.3 pounds in December 2005, 161.3 pounds in June 2006, 155 pounds in December 2006, 149 pounds in June 2007, 169.3 pounds in December 2007, 155 pounds in June 2008, 153 pounds in November 2008, and 149.1 pounds in May 2009. In December 2006, it was noted that the Veteran was being switched over to Atripla QHS. In June 2007, it was noted that private lab work from May 2007 revealed a CD4 count of 1,717 and viral load under 75. In October 2007, CD4 count was 873. In December 2007, CD4 count was 796 and viral load continued to be under 75. In May 2009, it was noted that the most recent CD4 count was 711, with viral load under 75. From June 2007 to May 2009, the Veteran's HIV that was consistently assessed as "suppressed." In November 2008 and May 2009, the Veteran reported having good appetite and denied fever, chills, abdominal pain, vomiting, diarrhea, constipation, and muscle pain.
At the September 2005 VA examination, the Veteran reported being on anti-retroviral therapy. He denied any weight loss and any history of infections by opportunistic pathogens. On physical examination, the Veteran's weight was 175 pounds. Diagnostic testing revealed CD4 count of 529 per cmm. The assessment was HIV positive, on anti-retroviral therapy.
On further VA examination in October 2007, it was noted that the Veteran had postnasal drainage and spitting up white mucous off and on, as well as sinus drainage. There were no problems swallowing, no pneumonias, no other infections, and no antibiotic treatment. The Veteran reported having lost 30 pounds in the last two years. He had diarrhea once a month, which he attributed to his medications. There was no blood, vomiting, malignancies or fever. On physical examination, the Veteran's weight was 150 pounds. Diagnostic testing revealed CD4 count of 873. The assessment was again HIV positive, on antiviral therapy. It was noted that the Veteran was currently responding well with a high CD4 count.
In order to meet the criteria for a 30 percent rating prior to August 24, 2009 for HIV, the evidence must show recurrent constitutional symptoms, intermittent diarrhea, and requires approved medication(s); or T-cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. See 38 C.F.R. § 4.88b, Diagnostic Code 6351. The evidence, as summarize above, shows that the Veteran consistently reported feeling well and denied having any problems with his HIV. VA treatment records dated from June 2007 to May 2009 describe the Veteran's HIV as being "suppressed." The Veteran's viral load is shown to have been undetectable since March 2006. While his HIV is shown to require medications, and he reported having diarrhea once a month, likely due to the medications, at the October 2007 examination, the Veteran consistently denied symptoms of fever, chills, rigors, vomiting, abdominal trouble and muscle pain. Thus, the evidence does not demonstrate that the Veteran has recurrent constitutional symptoms in combination with recurrent diarrhea and the requirement of approved medication. In addition, the evidence shows that the Veteran's CD4 count has always been well above 200 and that he has not developed hairy cell leukoplakia, or oral candidiasis. Based on the foregoing, the Board finds that the criteria for a higher initial rating of 30 percent for the period prior to August 24, 2009 have not been met.
The Board has considered whether the Veteran met the criteria for even higher ratings of 60 percent or 100 percent for this period. However, the Veteran is not shown to have refractory constitutional symptoms, nor is he shown to have developed an AIDS-related opportunistic infection or neoplasm. See 38 C.F.R. § 4.88b, Diagnostic Code 6351 (criteria for 60 percent rating). Moreover, there is no evidence of debility and progressive weight loss, or AIDS. See 38 C.F.R. § 4.88b, Diagnostic Code 6351 (criteria for 100 percent rating). While there have been changes in the Veteran's weight over the years, such changes have been manifested by significant fluctuations in his weight and not by progressive weight loss associated with his HIV. A higher evaluation of 60 percent or 100 percent prior to August 24, 2009 is therefore not warranted.
For the period from August 24, 2009, the relevant evidence consists of an August 2009 VA examination report. At the examination, the Veteran reported that the course of his HIV since onset had been stable. He was currently on treatment with highly active anti-retroviral therapy; the side effects of this treatment were out-of-focus, blurred vision. Regarding current constitutional symptoms, the Veteran reported recurrent night sweats and recurrent extreme fatigue, and denied fever, weight loss and malaise. Other current symptoms included myalgia, loss of appetite, severe diarrhea, pharyngitis, headaches, and depression. The Veteran denied vision loss, lack of coordination, lymphadenopathy, arthralgia, seizures, difficult/painful swallowing, nausea, and cough. There was no history of hospitalization or surgery, no history of HIV-related neoplasm, no periods of remission, and no past or present opportunistic infections. On physical examination, weight was 145 pounds. There were no HIV-related conditions, no secondary conditions, and no evidence of memory loss or depression. Laboratory tests revealed a CD4 count of 711 and viral load under 75. The diagnosis was chronic HIV infection on treatment.
In order to meet the criteria for the next higher rating of 60 percent for HIV from August 24, 2009 onward, the evidence must show refractory constitutional symptoms, diarrhea, and pathological weight loss; or show that the Veteran has developed an AIDS-related opportunistic infection or neoplasm. See 38 C.F.R. § 4.88b, Diagnostic Code 6351. Here, the Veteran is shown to have constitutional symptoms of night sweats and extreme fatigue, which the August 2009 examiner described as "recurrent." There is, however, no evidence of any refractory constitutional symptoms. Additionally, while the Veteran is shown to have severe diarrhea, the evidence does not demonstrate pathological weight loss. Although the Veteran's weight has ranged from as high as 174 pounds in June 2005 to as low as 145 pounds in August 2009, reflecting an overall decline in his weight over the years, the evidence shows that there have been significant fluctuations. Indeed, the Veteran's weight in August 2009 was nearly the same as it was two years ago, at 149 pounds in July 2007 and 150 pounds in October 2007. To the extent the Veteran's weight has fluctuated over the years, the evidence does not show this to be attributable to his HIV. Furthermore, the evidence clearly shows that the Veteran has not developed any AIDS-related opportunistic infection or neoplasm. As such, a higher rating of 60 percent is not warranted here.
The Board has considered the assignment of an even higher rating of 100 percent for this period. However, the Veteran is not shown to have debility and progressive weight loss, either without remission, or with few or brief remissions, nor is he shown to have AIDS. See 38 C.F.R. § 4.88b, Diagnostic Code 6351 (criteria for 100 percent rating). While there have been changes in the Veteran's weight over the years, such changes have been manifested by significant fluctuations in his weight and not by progressive weight loss associated with his HIV. A higher evaluation of 100 percent from August 24, 2009 onward is therefore not warranted.
In addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim. He is competent, as a layman, to report on that as to which he has personal knowledge, such as observation and experience of diarrhea and weight loss. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). But even accepting the competency of these lay statements, the objective medical findings do not show that he experiences all of symptoms required for a higher rating; thus there is no basis to also find his lay testimony credible in this other important respect. See Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).
Furthermore, the Board has considered the possibility for additional staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for a rating in excess of 10 percent have been met at any time prior to August 24, 2009, or that the criteria for a rating in excess of 30 percent have been met at any time from August 24, 2009 onward, the Board concludes that further staged ratings are inapplicable.
In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the preponderance of the evidence supports or is against the claim. In this case, the preponderance of the evidence is against the Veteran's claim for higher initial ratings, and the claim must be denied. See 38 U.S.C.A. 5107(b); Gilbert, 1 Vet. App. 49, 55 (1990).
b. Facial Acne
The Veteran filed his claim of service connection for facial acne in May 2005. As such, this claim may only be evaluated according to the criteria for evaluating skin diseases in effect since August 30, 2002. See 67 Fed. Reg. 49590-49599 (July 31, 2002); see also VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g). During the pendency of this appeal, VA issued a clarifying final rule at 73 Fed. Reg. 54708-12 (Sept. 23, 2008) for evaluating scar disabilities under diagnostic codes 7800, 7801, 7802, 7803, 7804 and 7805. However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria, which he has not done here. Therefore, the Board has no authority to consider these revisions in deciding this claim. VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g).
The Veteran's facial acne is currently evaluated as 10 percent disabling under the criteria of Diagnostic Code 7828 for acne. Under Diagnostic Code 7828, a 10 percent evaluation is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. A 30 percent evaluation is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118 (2010).
Alternatively, the acne may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7828 (2010).
Under Diagnostic Code 7800, which pertains to disfigurement of the head, face, or neck, ratings may be based on the number of characteristics of disfigurement present. The eight characteristics of disfigurement, as listed in Note (1), include the following: (1) scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurate and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118 (2008).
Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118 (2008).
Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. 38 C.F.R. § 4.118 (2008).
Diagnostic Codes 7801 and 7802 provide ratings for scars, other than the head, face, or neck. 38 C.F.R. § 4.118 (2008). As the disability at issue is facial acne, these codes do not apply here.
Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2008).
Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. A superficial scar is again defined in Note (1) as one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2008).
Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118 (2010).
On VA general medical examination in September 2005, the Veteran was found to have three comedo form lesions on the face, described as three 1 cm x 1 cm raised erythematous papular lesions. Examination of the skin was otherwise normal. There were no cysts, no pustules, no disfigurement, no biopsy, no scraping, and no functional limitation. The body surface area involved was less than 1 percent. The exposed body surface area involved was less than 1 percent. The diagnosis was chronic facial acne.
At an October 2007 VA examination for skin disorders, the Veteran was noted as having facial skin with various depths of acne that was superficial and deep. On the forehead, there was more on the left, and one to two acne lesions. The bilateral cheeks had five to ten active acne lesions; there were also four to five healed pitted lesions on each side of the cheeks. The neck had two to three active acne lesions (1 to 2 millimeters in diameter) bilaterally; these lesions were mostly papular. There were one or two pustules on the cheeks bilaterally. A deep cyst was noted on the left cheek with healthy skin. The percentage of the face and neck affected with active acne was 10 percent of the exposed body surface area and 1 percent of the total body surface area. The diagnosis was chronic facial acne with 10 percent of exposed skin involved.
On further VA examination in August 2009, the Veteran was noted as having superficial acne with comedones, papules, pustules, and superficial cysts. Less than 40 percent of the face and neck was affected, and no other areas were affected. The diagnosis was chronic facial acne.
Applying the criteria to the facts of this case, the Board finds that the criteria for a higher initial rating for facial acne have not been met at any time during the appeal period. In this respect, the evidence of record does not show that the Veteran's active acne affects 40 percent or more of the face and neck, so as to warrant the next-higher rating of 30 percent under Diagnostic Code 7828. See 38 C.F.R. § 4.118 (2010). Additionally, there is no evidence that his healed pitted lesions result in any visible or palpable tissue loss and gross facial distortion or asymmetry, any characteristics of facial disfigurement, frequent loss of covering of skin over the scar; pain on examination; and/or limitation of the function of any part affected. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804 (2008); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2010).
Overall, the Veteran's acne disorder is shown to have been relatively quiescent, and there is no objective evidence indicating that this condition has worsened since his most recent August 2009 examination. The medical treatment records on file are largely silent for evaluating an acne disorder. Overall, the findings from the September 2005, October 2007 and August 2009 VA examination reports provide strong evidence against this claim as they fail to show deep inflamed nodules and pus-filled cysts affecting more than 40 percent of the face and neck, or any compensable scarring characteristics. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804 (2008); 38 C.F.R. § 4.118, Diagnostic Codes 7805, 7828 (2010).
In so deciding, the Board is mindful that the Veteran competent to describe the characteristics of his acne disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, the Veteran has not provided any specific descriptions regarding the frequency, severity and duration of any active acne episodes. Overall, the most probative evidence in this case consists of the findings of the September 2005, October 2007 and August 2009 VA examiner who are trained to describe and evaluate an acne disorder, and these findings greatly outweigh the Veteran's contentions. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
c. Extraschedular Ratings
Finally, the Board has considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral).
The schedular evaluations for the Veteran's HIV and facial acne are not inadequate. His complained-of symptoms are those contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. The Board does not find any evidence that the Veteran's service-connected disabilities have markedly interfered with his ability to work above and beyond that contemplated by his staged 10 percent and 30 percent schedular ratings for HIV or his 10 percent schedular rating for facial acne. In addition, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular rating schedule. At the November 2006 DRO hearing, the Veteran testified that at his last job he had to miss time from work for medical appointments to get his blood drawn. Although the Veteran was later terminated from this job, which he suggests may have been due to his HIV status, the evidence shows that he was laid off due to lack of work. Moreover, the Veteran reported at the August 2009 examination that he had been employed at his current job for the past year or two and that he had lost no time from work during the last 12-month period. To the extent the examiner noted that the Veteran's HIV had significant effects on his usual occupation, the Board finds these effects to be already contemplated by his current schedular ratings. Furthermore, although the Veteran' testified at the DRO hearing that one of his HIV medications caused him to experience hallucinations, there is no mention of such complaints in his medical treatment records. At the October 2007 examination, the only reported side effect of his triple medications was diarrhea once a month, and at the August 2009 examination, the only reported side effect of his highly active anti-retroviral therapy was out-of-focus blurred vision. It does not appear that the Veteran has an "exceptional or unusual" disability. In other words, he does not have any symptoms from his service-connected disabilities that are unusual or are different from those contemplated by the schedular criteria. Referral for extraschedular consideration is therefore not warranted. See VAOPGCPREC 6-96; see also Thun, supra.
ORDER
A higher initial rating for HIV, currently evaluated as 10 percent disabling prior to August 24, 2009 and 30 percent disabling from August 24, 2009 onward, is denied.
A higher initial rating for facial acne, currently evaluated as 10 percent disabling, is denied.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs